爱华网Amendment opinion on “Measure for inspection and quarantine on import of solid scrap materials of the AQSIQ”
On behalf of many foreign enterprises, Haiyuan Law Office proposed the following amendments opinion on the measure.
Ⅰ.We propose abolish Article 11, which go contrary
to Administrative license Law.
There are logical mistakes in this paragraph, the reasons are as followed：
1.It is wrong that “the expert team should be set up within 10 days since application of the foreign suppliers”. Because this work is the routine work of AQSIQ, there are many receptions to application of foreign company everyday, is it possible to set up an expert team everyday ? Will have to set up 250 expert team during 250 working days of a year?
2. After administration approval of 5 years, the approval working has been fully mature and more experienced,the so-called expert team is not necessary, and the general administrative staff should be competent for this approval working. Moreover, if such an routine work still extra need hiring experts to conduct, than ,what shall do the civil servant? If all the administration license need hiring experts, it would be a terrible resource waste, and it would be a horrible government!
3. Does this sentence has demonstrated amply that the civil servants of AQSIQ are not competent for the administration working ?
Ⅱ.This paragraph go contrary to the legislative spirit and the related regulations of the Administrative license Law. “Excluding license time of the expert team”, which seriously violates the legislative spirit and the related regulations of the Administrative license Law , makes application of foreign company become impossible at a certain period of time.
Article 18 of the Administrative license Law stipulates explicitly “In the establishing administrative license, provision shall be made for the authorities,conditions, procedure and time limit for granting administrative ”, apparently, the time limit of the administration license is the compulsory provisions. If the time limit was not included, the administration license will become an arbitrary conduct, which does not have authority. Item 3 in article 12 of the Administrative license Law stipulates “matters of professions and sectors providing services for the general public directly related to public interests that require the recognition of competence and qualification with particular credibility, particularly condition or particular skills” .It is judged from this provision that approval qualification of the foreign waste supplier. within referred“special requirement of this article .Therefore such approvals are within routine work of a typical government administrative license. This article is not special、 specialized and deeply professional work., but an routine work.
Article 30:“administrative authorities shall manage to publicize at their place of office the matters, bases, conditions, quantity, procedure and time limit for administrative license as required by the law ,administrative regulations or rules, a list of all the materials for the application documentation, sample applications,etc. where applicant request administrative authorities to specify or explain any matter publicized, the administrative authorities concerned shall specify or explain it, in order to provide accurate and reliable information.”
Article 33:“ administrative authorities shall establish and improve relevant systems, promote electronic administration, publicize matters of administrative license on their web site, and provide convenience, for applicants filing application for administrative license with digital messages or in other forms , they shall share relevant information on administrative license with other administrative authorities, in order to raise work efficiency”.
Article 37:” After reviewing an application for administrative license , administrative authorities shall make a decision on administrative license in accordance with relevant statutory procedure within the time limit prescribed by law ,except for the circumstance that they can make a decision on administrative license on the spot .
Article 42:“ Except for the circumstance that a decision on administrative license can be made on the spot ,administrative authorities shall make an decision on application for administrative licensewithin 20 days counted from the date of accepting the application .where a decision can not be made within the 20-day time limit, the time limit can be extended by 10 days with the approval of the top leader of the administrative authorities, and the reason to extend the time limit shall be notified to the applicant. Where application for administrative license are processed on a unified basis or a joint or concentrated way, the time limit for processing the application may not exceed 45 days. aihuau.comWhere the processing of the application can not be completed within the 45-day time limit, the time limit can be exceeded by 15 days, with the approval of the top leader of the people’s government at the corresponding level, and the reason to extend the time limit shall be notified to the applicants.”
Ⅲ.This paragraph is not applicable tothe article 45 of the Administrative license Law.
The administrative license is different from the situations prescribed in such article, here the“
expert uation” means the professional adviceof impartial expert , which equals to the “expert witness”in lawsuit in the special situations, is not the general administrative work of civil servant.If such license working need special expert ,than can be reduce by half the civil servant of Chinese government.
Ⅳ.Abolishing the no-value procedure of the examination on the scene .
Ⅴ. According to the “Administrative License Law,” recommending such provisions should be added.
1.Should add: according to the provisions of “Administrative Licensing Law”in article 1 of the
Measure
2.According to article 18, 37, 42 and 74 of “Administrative Licensing Law”, must stipulate the approval time is no more than 3 months expressly in the “Measure” (the time is ample) and grant the license of AQSIQ for foreign company.
The article should be,“AQSIQ should be approved and granted the license within 60 days since it accepted the application of foreign company.”
3. Should be informed about specific reason for rejection and the time of re-application in writing for the non-approval enterprises.
4. Should be modified : re-submit after 2 months for non-approval enterprise from the existing 6 months .
5. Should be expressed what the details of the documents must be included in the“Measure” according to the article 4, 16, 18 and 30 of the “Administrative Licensing Law”. Otherwise, it is not consistent with the lawful ambit and condition .
6. The office of license team is filled with application documents on the ground, barely having a place to walk. This has fully demonstrated the amount of application is so huge, the application documents are so complex, the accumulative workload of examination is so monstrous, the working efficiency is so low, and expectation of the foreign enterprise on Chinese government is so high. All of these are beyond any approval matter in China now.
